Ebola

Maine's Governor Brags About His 'Robust Authority' to Quarantine Healthy, Ebola-Negative Nurses

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Office of the Governor

Yesterday Maine's governor, Paul LePage, said he would "seek legal authority to enforce the quarantine" of Kaci Hickox, the nurse who returned to the United States on Friday after treating Ebola patients in Sierra Leone. But he did not specify which "legal authority" he had in mind. Meanwhile, LePage dispatched state troopers to Hickox's home in Fort Kent to keep an eye on her. Today they tagged along as Hickox took a bike ride with her boyfriend, brazenly defying LePage's admittedly extralegal demand that she remain confined to her home until mid-November, even though she is neither sick nor contagious. LePage said he was willing to allow the occasional bike ride or jog, as long as Hickox does not come anywhere near other people, but she rejected that gracious concession. So LePage, having already announced his intent to force Hickox's compliance with his arbitrary, scientifically unfounded dictates, again vowed to do so, but he was still pretty vague about how that would work:

The Governor will exercise the full extent of his authority allowable by law. Maine statutes provide robust authority to the State to use legal measures to address threats to public health.

Public health provisions contained at Title 22 of Maine's Revised Statutes govern how the State may proceed to control diseases. There are multiple options provided in law. Specifics of the process or steps being taken by the State at this time may not be discussed publicly due to the confidentially requirements in law.

According to LePage, Title 22 provides "multiple options" for him to enforce his will, but he is not going to tell us which one he plans to use. Let's have a look and see which provisions might be relevant.

Under Section 812, the state can obtain an "order for treatment or such other order as may direct the least restrictive measures necessary to effectively protect the public health." A court is supposed to issue such an order only if it finds, "based upon clear and convincing evidence," that "a public health threat exists." But since Hickox is asymptomatic and incapable of transmitting Ebola, she does not currently pose a public health threat, and forcibly confining her to her home does not seem like "the least restrictive measure" to address the possibility that she will pose such a threat in the future, given the alternative of daily temperature monitoring. As The New England Journal of Medicine notes, "fever precedes the contagious stage."

What else might LePage try? Under Section 810, the state can obtain a court order giving it "temporary emergency custody" of someone if it can show by clear and convincing evidence that such an order is required "to avoid a clear and immediate public health threat." But if Hickox does not pose a public health threat, she cannot pose a "clear and immediate" public health threat.

Under Section 820, the state can bypass the need for a court order. The Department of Health and Human Services can unilaterally "take a person into custody and order prescribed care," which includes "isolation" or "quarantine," but only if:

(a) The department has reasonable cause to believe that the person has been exposed to or is at significant medical risk of transmitting a communicable disease that poses a serious and imminent risk to public health and safety;

(b) There are no less restrictive alternatives available to protect the public health and safety; and

(c) The delay involved in securing a court order would pose an imminent risk to the person or a significant medical risk of transmission of the disease.

Hickox may have been "exposed to" Ebola in Africa, but she is not "at significant medical risk" of transmitting it, and the threat she poses is neither "serious" nor "imminent." Nor does her situation meet the other two criteria. Finally, this provision applies only in the event of "an extreme public health emergency," defined as "the occurrence or imminent threat of widespread exposure to a highly infectious or toxic agent that poses an imminent threat of substantial harm to the population of the State." Although LePage has the authority to declare such an emergency, doing so would require a dramatic distortion of reality.

Someone who is forcibly isolated under Section 820 has a right to judicial review "as soon as reasonably possible but not later than 48 hours after the person is subject to prescribed care." To prevail at the hearing, the state '"must prove by clear and convincing evidence" that conditions (a) and (b) have been met.

In short, LePage does indeed have "robust authority" to deal with serious and imminent threats to public health. The difficulty lies in proving that Hickox qualifies as one of those and that home confinement is the least restrictive way of addressing whatever risk she may pose in the future.